Advancing Pretrial Justice

Custodial arrest should be used selectively and only when it is statutorily required or necessary to protect the community or an individual victim’s well-being and safety. An alternative is to use citations or summonses. These are “orders to appear” in court on a particular day and time. They can be issued in the field without taking someone to jail when a person is suspected of a crime.

Many jurisdictions find that citations and summonses are safe and efficient ways to handle lower-level violations of the law. Staying out of jail helps a person keep their job and housing, maintain family ties, and be a contributing member of the community. 

Because most calls to the police are for minor offenses and neighborhood nuisance issues, using citations and summonses keeps officers in the community instead of transporting people to jail. This can improve the effectiveness of law enforcement.

To encourage consistent and equitable use of citations and summonses, law enforcement agencies should:

• Adopt policies and operational guidance specifying the situations and people for whom these options are—and are not—appropriate 
• Ensure that law enforcement leadership, from the chief or sheriff to the unit supervisor, expresses their clear support for citations, summonses, and any other noncustodial options in appropriate circumstances
• Provide clear instructions on the citations and summonses about when and where to appear in court

Stories and resources on using citations and summonses:

• Jail Overview
  Understanding who is in your jail may help system and community stakeholders identify appropriate uses for alternatives to custodial arrest. 
• Tremendous Positive Change
  In New Jersey, increasing the use of complaint-summonses means fewer people in jail.
• Pretrial Detention Research Summary (PDF)
  Understand the consequences of detention for people and communities.

Agencies should adopt clear policies and criteria that promote the appropriate use of diversion options at each decision point—beginning at the initial contact with law enforcement. In jurisdictions where few diversion options exist, new programs will need to be developed. Each agency should promote new diversion options and provide training to staff on how and when to use them.

Community members can be valuable partners. They have deep knowledge of local concerns, approaches that might be most effective, and resources that can be rallied to offer supportive services.

Where probable cause to arrest exists, law enforcement officers take an alternative course of action. One option is “lecture and release.” Officers may also refer a person to a program or service to address the presumed underlying cause of the alleged legal violation, such as a mental health concern, substance use, or lack of safe, stable housing. 

In some jurisdictions, rather than arresting people, law enforcement diverts them by transporting them to hospitals or triage centers. These are places that can assess and address people’s needs. Some jurisdictions also pair specially trained officers with civilian mental health and social service workers to respond to calls. Or they deploy civilians instead of uniformed, armed law enforcement to de-escalate incidents and prevent them from ending in tragedy. 

Pre-arrest diversion results in no arrest or referral for charges.

This diversion option is similar to pre-arrest diversion, but the referral by law enforcement occurs after arrest and booking.

After law enforcement refers a person for prosecution, prosecutors withhold filing charges. Instead, an alternative course of action is taken. For example, prosecutors may stipulate that a person:

• Remain crime-free for a specified period of time
• Participate in behavioral health treatment
• Participate in education classes or conduct community service or other types of victim restoration

Satisfactorily completing pre-charge diversion typically results in charges not being issued.

After charges are filed or as part of the plea negotiation process, an agreement may result in one or more specified conditions. Conditions may require participation in programs or services, including, in some jurisdictions, a pre-plea specialty or problem-solving court. Successfully completing diversion at this stage typically results in the dismissal or reduction in the level of formal charges. For example, a felony may be reduced to a misdemeanor or forfeiture.

Stories and resources on creating diversion options:

• Hugging the Cactus
  Civilian responders can address situations that law enforcement officers are less equipped to handle.
• Diversion 101 Series
  This series by the Center for Effective Public Policy explores pre-conviction diversion options, including clarifying their purposes, providing guiding principles, and exploring the public safety and other benefits.
• Focusing on Accountability and Harm Reduction
  Milwaukee County Deputy District Attorney shares the challenges and successes of advancing pretrial justice, including diversion and deferred prosecution.

To speed the release of a person highly likely to appear in court on their own and remain law-abiding, judicial officers give other system professionals authority to release a person before their first appearance hearing. This authority may go to pretrial agencies, law enforcement, prosecutors, or jail staff. This is often called “delegated release authority.”

Because of local policies and state laws, jurisdictions often limit delegated release to people charged with lower-level offenses. They may also require that a person have a relatively lower score on a pretrial assessment tool.

Delegated release authority can reduce the use of a financially based bond schedule. Releasing people based on their ability to afford a financial condition benefits the wealthy and penalizes those without financial means. And sometimes release decisions are made without assessing a person’s likelihood of success when released.

Using different criteria can result in release decisions that are more equitable, more consistent, safer, and more effective in protecting community well-being and safety. The criteria may be a combination of a person’s assessment scores, current charges, and case-specific circumstances.

As with other release policies, jurisdictions should adopt clear policies and guidance on delegated release authority to encourage its consistent, timely, and equitable use.

Stories and resources on release before first appearance:

• Jail Overview
  Understanding who is in your jail may help system and community stakeholders identify alternatives to detaining someone until their first appearance. 
• Lucas County: Reducing Reliance on Jail through Comprehensive Pretrial Reforms
  Delegated release was one of several policies adopted in Lucas County, Ohio, as part of an ambitious effort to improve pretrial system outcomes for the community.
• Pretrial Detention Research Summary (PDF)
  Understand the consequences of detention for people and communities.

The first appearance hearing should not be treated as an administrative or pro forma matter. Competent legal representation should be provided to people charged with a crime. The defense attorney and prosecutor should be prepared to provide the judicial officer with all information needed to make a sound release decision. Victims also have a right to be heard directly or through prosecutorial representation.

The defense should be given an opportunity to offer arguments regarding pretrial release, conditions, and diversion. Financial release conditions should be used only after assessing a person’s ability to pay. Wealth should not determine a person’s release or detention.

The judicial officer should be required to provide a rationale—orally or in writing—for any decision to impose conditions or to hold a person in jail. There should also be an opportunity for the decision to be appealed—or at least reviewed or reconsidered.

Best practices are for first appearances to occur as soon as possible following arrest. Many jurisdictions require first appearance hearings within 24 or 48 hours of arrest. But this varies from jurisdiction to jurisdiction.

Stories and resources on conducting meaningful first appearance hearings:

• Counsel at First Appearance Practice Guide (PDF)
  A guide to providing counsel at first appearance hearings, best practices, and considerations for implementation.
• Meaningful First Appearance Overview & Checklist (PDF)
  A practical guide to first appearance hearings that honor the constitutional principles of individual liberty and fairness, promote system efficiency, and assure community safety and well-being.
• What Is a Pretrial Detention Hearing? (PDF)
  Use this resource to understand the elements of a pretrial detention hearing and bring intentionality and certainty to detention decisions.
• Meaningful First Appearance Hearing Training
  From our Training Library, learn the elements of a meaningful first appearance hearing, and hear from people working in and impacted by the criminal legal system. To access our on-demand trainings, register with APPR.
• Pretrial Detention Research Summary (PDF)
  Understand the consequences of detention for people and communities.

Most state constitutions and/or laws define a group of people who can be detained pretrial. Often this group includes people charged with capital or other very serious crimes. 

Most states limit the circumstances (expressed through their laws, court rules, or court cases) when those otherwise eligible for pretrial release can be detained. At a minimum, those circumstances are when no condition of release or combination of conditions can provide reasonable assurance that a person will not flee or threaten community or victims’ safety.

So, the decision to detain pretrial should generally involve answering two questions:

• Is the person eligible for pretrial detention under state law?
• Is there no condition of release, or combination of conditions, that provides reasonable assurance that the person will not flee and will not threaten community or victim safety?

The judicial officer can order pretrial detention only if the answer to both questions is “yes.”

If the person is not eligible for pretrial detention or if release conditions can provide the court with reasonable assurance of the person’s court appearance and community safety—including victim safety—the person should be released.

When making their decision, judicial officers should also consider the impact of pretrial detention on the person. This includes considering their employment, family responsibilities, and health, as well as the impact on the person’s dependents and community. And the fact that pretrial detention is correlated with higher rates of rearrest after release.

For someone to be detained, jurisdictions may require that the state request a detention hearing. However it is initiated, the judicial officer must schedule the hearing as soon as possible, keeping in mind the person who is being detained in the meantime and the time needed for prosecution and defense counsel to prepare for the hearing.

At the hearing, the person’s due process rights must be protected and honored. This means the person is represented, defense has the right to present evidence and to have an expeditious appeal, and the court provides written reasons for their decision.

Release decisions requiring a monetary bond as a condition of release should not result in a person’s detention. No one should be detained due to lack of wealth.

Stories and resources on limiting pretrial detention:

• Pretrial Detention Research Summary (PDF)
  Understand the consequences of detention for people and communities.
• What Is a Pretrial Detention Hearing? (PDF)
  Use this resource to understand the elements of a pretrial detention hearing and bring intentionality and certainty to detention decisions.
• Pretrial Detention Hearing Training
  From our Training Library, learn about the legal principles and practical considerations of conducting a detention hearing. To access our on-demand trainings, register with APPR.
• Pretrial Legal Analyses
  Understand the legal landscape of pretrial justice.
• Pretrial Legal Principles (PDF)
  A summary of key legal principles around pretrial release and detention.

Actuarial pretrial assessments estimate the likelihood that people will appear in court and remain arrest-free while on pretrial release. They’re developed using large data sets about people who previously came into contact with the criminal legal system to identify factors that correlate with a lower likelihood of pretrial success.

Using statistics, the assessment gives decision makers information about how people with similar profiles to the person in front of them performed on pretrial release. This can help decision makers determine appropriate release conditions, if any.  

Assessment tools alone should never dictate the outcome or be the sole criterion to determine whether someone is released before trial. Eligibility for detention is governed by criteria and standards set forth in state and federal law (see Limit Pretrial Detention).

Most people on pretrial release are successful. They attend their court hearings and remain law-abiding. But some people need help to succeed. Assessment results can help identify people most likely to do well with no support and those who may benefit from assistance. Assistance can take the form of court date reminders, community services, or some form of pretrial supervision. In this way, assessments can help decision makers use their limited public resources wisely.

The use of assessments, along with other measures, can contribute to pretrial decisions that are more transparent, consistent, and effective. Research finds limited, if any, predictive bias, and assessment tools do not appear to exacerbate existing racial disparities.

Stories and resources on using a validated pretrial assessment:

• Pretrial Assessment Tools Research Summary (PDF)
  Read how actuarial pretrial assessment tools support pretrial decision making.
• What is the PSA?
  The PSA is an actuarial pretrial assessment that can advance pretrial justice when implemented as part of a comprehensive, systemic pretrial improvement.
• PSA Implementation Guides
  This series of guides help system stakeholders plan and manage PSA implementation activities.
• Improving Judicial Decision Making
  Milwaukee County implemented pretrial assessment and better data collection to improve decision making.

Pretrial release conditions are not as large an infringement on liberty as pretrial detention. But they are often burdensome. Conditions can harm a person’s ability to maintain positive work, school, or family responsibilities and to participate in their defense. But a judicial officer may determine that conditions are necessary to assure court appearance and community safety, including victim safety. When that is the case, release conditions should be the least restrictive possible. That is, they should not unnecessarily limit the person’s freedom.

Financial conditions of release are the default conditions in many jurisdictions. This is in spite of research showing that secured monetary bonds do not improve court appearance or arrest rates. And, financial conditions often result in detention. As a result, secured financial conditions should generally be considered one of the most restrictive conditions and a last resort for judicial officers—if they are considered at all.

Some see imposing conditions on everyone—and multiple conditions on most people—as “insurance for success.” But the research indicates this is counterproductive.

Ordering participation in unnecessary programming of any kind may disrupt positive activities in people’s lives. And it places them in settings with people who have more serious antisocial attitudes and habits.

Community-based and government resources are limited. Those resources should go to people with the highest need, meaning people assessed as the least likely to succeed.

Longstanding legal principles maintain that pretrial decisions should be individualized. This means that conditions should not be imposed based solely on charge or assessment scores. And judicial officers should avoid blanket conditions. Instead, they should look at the person before them and decide whether conditions of release are necessary and, if so, what those conditions are. They also must ensure that conditions offer essential help without undermining positive factors, like a person’s job, schooling, or family responsibilities. 

If circumstances indicate that a recommended condition is not necessary (or, vice versa, a condition not recommended seems useful), judicial officers should use their discretion.

Stories and resources on using the least restrictive conditions:

• Pretrial Legal Principles (PDF)
  Understand the key legal principles for pretrial release and detention decisions, including setting release conditions. 
• Pretrial Research Summaries
  Read current research on the effectiveness of financial release conditions, pretrial detention, location monitoring, and other practices.
• Release Conditions Matrix Training
  Watch a recorded training on developing an effective and research-based Release Conditions Matrix for the Public Safety Assessment. To access our on-demand trainings, register with APPR.
• The Art of Systemic Pretrial Improvement
  After El Paso County, Texas, reduced unnecessary pretrial detention and eliminated a standard bond schedule, community safety was enhanced. 

The shift toward supportive services is because of the field’s evolving understanding of pretrial legal principles and research, and the recognition that pretrial supervision is not the same as probation (and legally cannot be used as punishment). It is also motivated by the urgency to achieve more fairness, consistency, and economic and racial equity.

Supportive services are offered by court systems, pretrial services agencies, and community-based providers. They vary in type and scope. But they have one thing in common: a focus on helping people succeed while on pretrial release.

Notably, many of these services are not included as court-ordered release conditions. They may be offered to everyone or to select people by the court, defense, or a pretrial services department, depending on who is best positioned to know a person’s needs and the services most likely to support success.

Services should address the challenges or barriers that stand in the way of a person returning to court, such as transportation or childcare needs. Services might be as simple as text or phone reminders of court dates and changes in dates. They may also include referrals to community-based services.

Jurisdictions should think creatively and partner with others to develop an inventory of supportive pretrial services.

Stories and resources on offering supportive pretrial services:

• Pretrial Services Inventory
  Create an inventory to identify resources that support pretrial success.
• Stopping the Spiral
  Supportive pretrial services help people turn their lives around.
• Pretrial Supervision Training: Supportive Services
  Watch a recorded training about coordinating supportive services for people in the pretrial phase. To access our on-demand trainings, register with APPR.
• Pretrial Services Trainings
  Browse our library of recorded trainings to see past sessions on topics relevant to pretrial services.

Implementing a clear, consistent, and equitable policy for responding to behavior while on pretrial release achieves many goals. These include preventing unnecessary detention and empowering pretrial services to make service referrals or take other actions to help people succeed.

Such a policy would incorporate immediate, customized, specific, and meaningful rewards for positive behavior. A positive response might shift people to a less restrictive level of supervision or, in some instances, removal from pretrial services entirely. The policy would also indicate that responses to negative behavior should be swift, proportionate, fair, and individualized.

A framework for rewards and responses should be developed in conjunction with system and community stakeholders. The framework would include different levels—low, medium, and high—of positive and noncompliant behavior and different responses for each level. It should examine the person’s behavior and determine whether they are a threat to community safety or of failing to appear in court.

Violations associated with mental or behavior health issues should be addressed in a supportive setting, not in a punitive manner. To be transparent, this framework needs to be communicated clearly and carefully with the people supervised.

Stories and resources on responding to behaviors appropriately:

• Pretrial Services Inventory
  Create an inventory to identify resources that support pretrial success.
• Pretrial Compliance and Noncompliance Training
  From our Training Library, learn how to develop consistent responses to address people’s behavior to promote pretrial success, not simply manage failure. To access our on-demand trainings, register with APPR.
• Effective Communication for People in the Pretrial Phase Training
  From our Training Library, learn how to make communications clear and actionable so that more people succeed during the pretrial phase. To access our on-demand trainings, register with APPR.
• Pretrial Research Summaries
  Use the summaries to assess whether your pretrial practices are supported by research.

Repeated postponements of proceedings are a primary cause of delay. They are frustrating to those affected and expensive for the criminal legal system. They promote distrust in the system among victims, those accused, and the community.

To reduce postponements, the courts, prosecutors, and defense attorneys must collaborate. By working together, they can adopt best practices and rules around limiting adjournments and requiring attorneys to be prepared to proceed at court appearances. Exceptions should be made when postponements are in the interest of the person accused.

It may be useful for an interdisciplinary team to collect and review data on case processing to identify bottlenecks or areas of delay. This will allow a jurisdiction to collaboratively implement strategies to reduce case processing times.

Stories and resources on processing cases swiftly:

• Guide to Pretrial System Mapping (PDF)
  System mapping is a key way to understand how your system works and identify the changes your jurisdiction may want to make.
• A “Culture Shift” In Bernalillo County, New Mexico

An increasing number of jurisdictions are creating jail population review teams to examine the jail data and identify people who should appropriately be released. These teams frequently include people from local pretrial system partner agencies and community service providers. The teams should also include people who are able to petition the court and get a court hearing.

At the policy level, jail review teams use data to examine the pretrial jail population, address trends and drivers of this population, and put in place policy and practice changes to reduce unnecessary detention.

At the individual level, the teams examine why people remain in detention. Where appropriate, the teams petition the court to review and potentially modify their conditions of release. The teams may implement automatic reviews of financial conditions within 24 or 48 hours after the first appearance hearing to verify that detention was intended.

Jurisdictions should adopt clear policies and guidance about the purpose and scope of the jail review team. These policies should be shared with broader system partners.

Stories and resources on reviewing the jail population:

• Guide to Jail Population Review Programs
  A jail population review program helps identify who is in your jail—and why—and opportunities for improving system practices.
• Reducing Pretrial Detention Fairly and Equitably, Part 1
  A jail review team in Mecklenburg, North Carolina, helps identify people who can be safely released from detention.
• Reducing Pretrial Detention Fairly and Equitably, Part II
  In Pennington County, South Dakota, a jail review team helps identify people who might “fall through the cracks.”
• Pretrial Detention Research Summary (PDF)
  Understand the consequences of detention for people and communities.